Child custody and divorce in South Africa are governed by the Children’s Act 38 of 2005 and the Divorce Act 70 of 1979. The court will consider the best interests of the child as the paramount consideration, and the court will weigh the parents’ ability to provide a stable home, the child’s relationship with each parent, and the child’s wishes, where the child is of sufficient age and maturity. The custody and care arrangement is set out in the settlement agreement, and the agreement is incorporated into the decree of divorce.
This page is a complete guide on child custody and divorce in South Africa. It explains the legal framework, the factors the court weighs, and the practical process to follow. If you need help with a custody matter, our Sandton-based Family Law team can assist.
What the legal framework is
The legal framework for child custody and divorce in South Africa is the Children’s Act 38 of 2005 and the Divorce Act 70 of 1979. The Children’s Act sets the broad principle that the best interests of the child are the paramount consideration, and the Divorce Act sets the procedural framework for the divorce.
The two Acts work together to ensure that the child’s interests are protected in the divorce. The court will consider the parents’ ability to provide a stable home, the child’s relationship with each parent, and the child’s wishes, where the child is of sufficient age and maturity.
The types of custody arrangements
The types of custody arrangements in South Africa are listed below in the order they usually appear in practice.
- Sole custody, where one parent has the right to make the major decisions about the child’s life.
- Joint custody, where both parents share the right to make the major decisions about the child’s life.
- Sole primary care, where one parent has the day-to-day care of the child and the other parent has contact.
- Joint primary care, where both parents share the day-to-day care of the child.
What the court weighs
The court weighs several factors when deciding the custody arrangement. The most common factors are listed below in the order they usually appear in practice.
- The best interests of the child, which is the paramount consideration in every custody decision.
- The parents’ ability to provide a stable home, including the parents’ financial situation and the parents’ living conditions.
- The child’s relationship with each parent, including the parents’ involvement in the child’s life.
- The child’s wishes, where the child is of sufficient age and maturity to express a view.
How the custody is decided
The custody is decided by the court at the divorce hearing. The court hears the application, considers the evidence, and weighs the factors listed above. The court will make an order that is in the best interests of the child.
The parents can agree on the custody arrangement, and the agreement is incorporated into the settlement agreement. The court will usually approve the agreement where the agreement is in the best interests of the child.
What the order looks like
The custody order is set out in the decree of divorce. The order sets out the custody arrangement, the contact arrangement, and the maintenance arrangement. The order is enforceable under the Children’s Act, and the parents are bound by the terms of the order.
The order can be varied on a material change in circumstances, where the variation is in the best interests of the child. The most common reasons for a variation are listed below in the order they usually appear in practice.
- A change in the parent’s living conditions, including a relocation or a new partner.
- A change in the child’s needs, including a new school or a medical condition.
- A change in the parent’s ability to provide a stable home, including a job loss or a medical condition.
For a step-by-step look at how the variation works, see our guide on how a divorce works in South Africa.
Common Mistakes to Avoid
These are the patterns that leave parents with the wrong outcome.
- Skipping the best interests of the child. The court will weigh the best interests of the child as the paramount consideration.
- Failing to agree on the custody arrangement. The agreement is the fastest way to a custody arrangement.
- Skipping the supporting documents. The court will not make a custody order without the supporting documents.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
- Quitting the process before the order is granted. The custody is not final until the order is granted.
Frequently Asked Questions
How does child custody work in a divorce in South Africa?
Child custody and divorce in South Africa are governed by the Children’s Act 38 of 2005 and the Divorce Act 70 of 1979. The court will consider the best interests of the child as the paramount consideration, and the court will weigh the parents’ ability to provide a stable home, the child’s relationship with each parent, and the child’s wishes, where the child is of sufficient age and maturity.
What are the types of custody arrangements in South Africa?
The types of custody arrangements in South Africa are sole custody, joint custody, sole primary care, and joint primary care. The choice depends on the specific circumstances of the matter, and the court will weigh the best interests of the child in deciding the arrangement.
Who gets custody in a divorce in South Africa?
The court will weigh the best interests of the child in deciding the custody arrangement. The court will consider the parents’ ability to provide a stable home, the child’s relationship with each parent, and the child’s wishes, where the child is of sufficient age and maturity.
Can a child choose which parent to live with in South Africa?
The court will weigh the child’s wishes, where the child is of sufficient age and maturity to express a view. The court will consider the child’s wishes in light of the best interests of the child, and the court will weigh the wishes against the other factors.
Can a custody order be changed in South Africa?
Yes. The custody order can be varied on a material change in circumstances, where the variation is in the best interests of the child. The most common reasons for a variation are a change in the parent’s living conditions, a change in the child’s needs, or a change in the parent’s ability to provide a stable home.
What is the difference between custody and care in South Africa?
Custody is the right to make the major decisions about the child’s life, including the child’s education, the child’s religious upbringing, and the child’s medical care. Care is the day-to-day care of the child, including where the child lives, what the child eats, and how the child is raised.
Do I need a lawyer for child custody in South Africa?
A lawyer is not required for an uncontested custody arrangement, but it is strongly recommended for a contested custody arrangement. The custody is a complex legal process, and the parties should seek legal advice to ensure that their interests are protected.
Get help with your custody matter. If you need help with a child custody matter, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about child custody and divorce in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Children’s Act 38 of 2005 and the Divorce Act 70 of 1979, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.